RIAA: Changing Copyright Term On Recordings Is Unconstitutional (But Only If It's Shorter)

from the double-standards dept

Ah, the RIAA is so full of double standards and hilarious hypocrisy that they almost make this kind of thing too easy. On Friday, we wrote about Thursday's hearings for the Copyright Office, concerning the question of what to do about pre-1972 sound recordings, which technically are not covered by federal copyright law, but instead aggressive state copyright laws that mean most such works won't hit the public domain until 2067 -- way beyond what it would be if they were under federal copyright law (assuming -- and this may be a big assumption -- that copyright terms are not extended again). Those hearings continued on Friday, and as with the day before, the RIAA provided all sorts of ridiculous quotes. Basically, anything that hurts the RIAA is pure evil, unconstitutional and damaging to culture -- even if the arguments are contradictory and go against what the RIAA argues on other issues.

Once again, my coverage is based largely on the excellent coverage from Copycense. I've collated some of the key tweets he made in covering the hearings at the end of this post.

Most of the ridiculousness came in the second session of the day, but there was one comment that deserved mention during the first session, when the RIAA rep on the panel claimed that "Given 'piracy' issues" the last thing that anyone should want is to reduce the terms of copyright. I'm trying to figure out what one has to do with the other. If anything, it seems like you could make a pretty strong argument in the other direction. The rise of widespread infringement suggests that the industry has failed to make works available to the public in a way that properly benefits the public. Thus, shouldn't we be making those works even more available? Either way, the statement from the RIAA here is a red herring. The idea of putting such works under federal copyright law would just bring those works in line with the already ridiculously long copyrights that the RIAA fought for not so long ago.

Then we get to the second panel, which focused on the Constitutional issues of fixing the excessive copyright issues for these works, with one key suggestion being to put those works under federal copyright law. Jennifer Pariser, from the RIAA -- the same woman who the day before had ridiculously and incorrectly insisted that the public domain had no value continued along that path again. She claimed that such a change to copyright law would lead to litigation and would be a violation of the takings clause (part of the Fifth Amendment). Basically, she was claiming that changing the terms of copyright on these works is the equivalent of taking away rights from the copyright holders and giving them to the public. In fact, she specifically claimed that "the less harm" you do to changing the term of copyright, the less of an issue there is. Hmm.

So, here's the question: where was the RIAA and Pariser on the issue of massive copyright extension over the last century? Oh, you guessed it, the RIAA has been totally supportive of it. So, you see, according to them, you can only ratchet copyright law in one direction. If you take away from the public (which copyright is supposed to benefit), that's fine. If you help the public... well, that's just downright unconstitutional!

Pariser also pushed on with the same claim from the day before about the lack of value in anything that goes into the public domain, and thankfully, others pushed back on that, pointing out (1) that copyright law was never intended to be set up so that the copyright holder got all the value out of the work and (2) no one was looking to make the works valueless, they were just talking about removing the monopoly, which from an economic standpoint makes a ton of sense.

Those same folks, usually representing libraries, pushed back on many of Pariser's points, highlighting that many of these works had already been covered by more than 120 years of copyright, and how much more do they realistically need? At that point, someone asked a perfectly relevant question: why should sound recordings get longer protection than any other work... to which Pariser responded (apparently with a straight face, though I'm not sure how), that the RIAA has "developed business models" around the extended length of copyright on pre-1972 sound recordings.

To put it mildly, this is laughable. The works that the RIAA labels are still making money on would still be under copyright for a long, long time (though, as we noted on Friday, perhaps the real fear from the RIAA is that under federal copyright law the actual artists and/or their heirs could reclaim the copyright). But the fact is, the vast majority of these older works are disappearing. To suggest that these copyrights should remain so long because of the record labels' business model is ridiculous.

Copyright law is not, was not, and has never been about protecting the record labels' business model.

If they did set up their business models based on this (and they did not), that should make NO difference. I mean, let's take that to the logical extreme. If we were to use the RIAA's own logic here, then that means the PROTECT IP Act should not pass, because it would impact the business models of other types of sites. And, according to the RIAA, no laws should change that impact someone's business models, right? I'm assuming this also means the RIAA is now against three strikes laws, ACTA, TPP and all sorts of other proposals that would negatively impact the business models of others, right?

And, just to cap off the ridiculousness, at the beginning of the following panel, an RIAA representative had the ridiculous gall to suggest that a change to how these old works are treated might decrease the availability of these old works since there wouldn't be the same incentive to produce sound recordings. I hope you weren't taking a drink when reading that, because it should have made you spit it out. The whole two day event was to discuss the very fact that so many of these works are disappearing, because the RIAA record labels are not making them available. The whole point of moving some of these old works into the public domain is so that others can make them available. And the RIAA is twisting that argument -- again apparently based on its ridiculously confused understanding of the public domain -- to suggest that even fewer works would be available if freed up. Thankfully others quickly pointed out that the issue is the works aren't available now. Hopefully, the Copyright Office properly discounted the RIAA's FUDful claims at the hearing, because they went beyond being just slightly misleading into being flat-out ridiculous.[View the story "RIAA Says Any Change They Don't Like Is Unconstitutional" on Storify]

Re: unconstitutional

Because the state laws benefit the RIAA and benefiting the RIAA is what the Constitution is all about. Please try to keep up here. Once you realize the entire reason for the existence of the universe is to make things better for the RIAA we'll all be happier.

Re: unconstitutional

Why aren't those state laws themselves unconstitutional?

As I understand it, at the time these laws were passed, sound recordings were a new technology and Congress wasn't sure if their authority under the Constitution applied to them. I think Mike has written about this in the past and could provide a link.

(Yes, I know what you're thinking - Congress actually wondering if they had authority under the Constitution to do something?? Keep in mind this was nearly 100 years ago)

lots of excellent works are going to die as far as the public is concerned if they don't get into the public domain. soon all of Buddy Holly and Bill Haley and the comets and others at the start of Rock and Roll will be in this situation.
Looking forward if copyright did not exist or was considerably shorter the artist / writer would have the incentive to create more music knowing that if they didn't their meal ticket runs out.

Re:

Having some works die and not be preserved for posterity may actually be required in order to wake up our legislators to the problem of works never falling into the public domain, or the problem of being unable to archive material due to DRM, and other problems.

Maybe the RIAA can successfully argue that it is better to lose all artifacts of past art and music to decay rather than to have it fall into the public domain. After all, there is no value in the public domain. We wouldn't want art and music to lose its value.

Maybe a way to attack this is that copyright should come with a responsibility. A responsibility to preserve copies of a work and actually release DRM free copies into the public domain once copyright expires. A responsibility that has huge financial consequences attached for failure to do so.

If a work is so profitable that you think it should be locked up for almost a century after the death of the author, then surely the owner can afford to make copies available after copyright expires. If there was no substantial income from the work in the later part of its life, then why not release it into the public domain sooner?

Re: [mike allen]

Looking forward if copyright did not exist or was considerably shorter the artist / writer would have the incentive to create more music knowing that if they didn't their meal ticket runs out.

Somehow this excellent point always makes it past being explicitly stated. Maybe I'm just missing it, but I read a lot of copyleft stuff, specifically most everything on Techdirt, and I just don't see it enough. The argument of IP maximalists/supporters is about not having to change. No one is losing the incentive to create more than the very people wringing their hands about it disappering. They have no incentive to create anything new (meaning business models, since these sleazy trade organizations don't strictly "create" anything in the first place), because they're enjoying a gov't-granted monopoly + police powers on their old, rehashed models.

The RIAA is correct in noting that a 5th Amendment "taking" is almost surely a constitutional concern should state law be subsumed under the federal copyright system. Federalization would have the operative effect of taking away from a rights holder under state law a long ago vested and unqualified right of ownership, and without any provision made to compensate the owner for the taking of its rights and transferring them to the other party to the contract without any return consideration.

Litigation under the 5th Amendment is almost sure to follow if the termination of transfer provisions under federal law are imposed upon these long ago sales under state contract law.

This is the basic point Mr. Hoffman made in his oral comments at the meeting, and undelies why I commented that what Mr. Hoffman was being portrayed as saying in Mr. Dames tweets was taking Mr. Hoffman's points entirely out of context, and misleadingly so.

Re:

Looking forward if copyright did not exist or was considerably shorter the artist / writer would have the incentive to create more music knowing that if they didn't their meal ticket runs out.

This is exactly what the RIAA/MPAA/etc are fighting against. They know the average Joe could care less if singers/actors/etc have to keep working their entire life in order to make a living, after all, the average Joe's have to.

I think the digital world will finally bring prices and pay down on the entertainment industry to a more realistic point. You can't tell me that a singer or actor wouldn't still sing or act if all they did was make a living rather than a killing. After all, most of the rest of us just make a living. Besides, it would beat digging ditches or waiting table which is what many of them might be doing otherwise.

RIAA

A lot of entities would like to rewrite or interpret the Constitution the way they would like it to read. Sound recordings didn't exist when the Constitution was written so perhaps the RIAA feels it their duty to "Help Out" with how it would have been covered if the recordings existed.

Re: Re:

"This is exactly what the RIAA/MPAA/etc are fighting against. They know the average Joe could care less if singers/actors/etc have to keep working their entire life."

It has nothing to do with the actual artist making anything. If you shorten it you removed the amount of time that the RIAA has to steal from it. Being that they are an organization the creates nothing (but propaganda) they rely on milking these recordings as long as possible in order to pay themselves a small fortune.

Listening to an organization who has their entire business model based on putting a legal lock on everything they can get there hands on should not be allowed a seat at the discussion table. They are not motivated by helping culture or expression find an easier avenue. They are interested in how they can extort fees for it, and from whom. They do not act in the public interest which is the actual job our government was setup to protect initially. The RIAA is nothing more than a corporate special interest group that has way to much clout, and the ear of WAY to many politicians in Washington D.C.

Re: Re: unconstitutional

Indeed AC.Jun06.0807, I forgot all about the state issue.

I was brushing up on graphic art; create, published, unpublished and registered date & infringement at law.cornell.edu TITLE 17óCOPYRIGHTS and got a headache that can only be matched by reading FORTRAN printouts. If I had to add state statute to my reading list then I would be a homicide victim - head explosion.

Re:

To reiterate from the article, why is it considered 'taking' if copyright terms are made shorter, thus affecting a legacy industry, but it isn't considered 'taking' when copyright terms were extended retroactively, thus affecting the deal with the public?

Re:

The RIAA is correct in noting that a 5th Amendment "taking" is almost surely a constitutional concern should state law be subsumed under the federal copyright system. Federalization would have the operative effect of taking away from a rights holder under state law a long ago vested and unqualified right of ownership, and without any provision made to compensate the owner for the taking of its rights and transferring them to the other party to the contract without any return consideration.

Litigation under the 5th Amendment is almost sure to follow if the termination of transfer provisions under federal law are imposed upon these long ago sales under state contract law.

Annnnnnnnd once again, you totally miss the point.

Please, explain how the RIAA's arguments here do not totally contradict its position on copyright extension. Similarly, despite your claims to the contrary, how did Hoffman's comments not totally contradict copyright extension.

Re: Re:

Since the only data provided concerning his comments was a one line "tweet", it is missing the context in which it was supposedly made.

That context can be found in Mr. HOffman's written submission last February in response to the Copyright Office's RFI. The issue he addressed was what he perceives as an important contract issue governed by state law that would arise, one that has overtones of federal interference with contracts governed by state law and the spectre of takings under the 5th Amendment.

If you read his submission you will quickly note that it has nothing to do with copyright extensions under federal law.

Re:

taking away from a rights holder under state law a long ago vested and unqualified right of ownership, and without any provision made to compensate the owner for the taking of its rights and transferring them to the other party to the contract without any return consideration.
and EXACTLY the same thing happens in the opposite direction when terms are extended.

I have a collection of classical LPs from the 60's and about 1/4 of them are now in the public domain (in the UK) therefore if (as seems likely) sound recording terms are extended for 20 years in Europe I will lose the right to make free use of that material without compensation.

Re: Re: Re:

If you read his submission you will quickly note that it has nothing to do with copyright extensions under federal law.
Only a blinkered apologist for the RIAA could possibly think that. The fact is that, in general moral terms, copyright extension IS a theft from the public. Your defense is just a technical sophistry designed to excuse the indefensible - the kind of thing that third rate students say when they are caught for plagiarism.

Re:

Business models

If we were to use the RIAA's own logic here, then that means the PROTECT IP Act should not pass, because it would impact the business models of other types of sites. And, according to the RIAA, no laws should change that impact someone's business models, right?

No, no, no. Not someone's business model, the labels' business model! Come on Mike, you've been covering this long enough to know that! ;-)

"and EXACTLY the same thing happens in the opposite direction when terms are extended"'

Actually, No. Contracts are typically agreements between two parties that are supported by the exchange of consideration and contain all the terms associated with the contract. An unqualified transfer of ownership under a contract is just that, unqualified.

Whenever a governmental entity steps in and unilaterally modifies a contract to materially change its terms, it has redrafted the contract to deny one party the very thing covered by the contract.

While not on point since we are talking about different laws, try and imagine if you will purchasing your home from a seller who then transfers to you under the contract full and irrevocable title to the home. Now imagine a statute later being enacted that permits the seller to later reclaim title to your home without any obligation whatsoever to pay you a dime.

This is what happens under federal copyright law when the "termination of transfer" provision is applied.

Re: Re:

I could not agree more. Federal case law to date in essence says "If you cannot get through the 101 door then Title 35 is irrelevant and has does not apply.

It would be a simple thing to change the law to provide that Title 35 applies to everything, but only things that pass through the 101 door are entitled to be considered for a patent. Alas, they have not, and this is in my view a "barn door" that has gone unnoticed. So many times those associated with the law are so busy wandering around the forest that they fail to step back and look at the forest from afar.

Re: Re: Re: Re:

Re:

Now imagine if you signed a contract to lease some property to someone for a period of one year in exchange for a sum of money. Now imagine a statute is enacted that permits the lessor to keep the property for an additional year without any additional compensation to you. This is what happens when federal copyright terms are retroactively extended as with the 1976 copyright act.

If you approve of one and oppose the other, you're going to have to provide some explanation of a relevant way in which they're different. I think the argument could be made that there's enough benefit to simplifying copyright terms to justify moving sound recordings under federal copyright, especially since no harm to anyone has actually been demonstrated. On the other hand, I've never seen any legitimate justification for why retroactive copyright extension is a good thing but putting all recordings under federal copyright is bad.

Re:

NAH, easily fixed. Just place it all in the public domain, and since RIAA has already agreed that public domain works have zero value, it's super easy to calculate how much the just compensation should be.

Re: Re: Re: unconstitutional

I don't think the 10th would prohibit a state from enacting a law in the same area that the federal government has constitutional power to act (unless you have a reference that states otherwise of course). It's generally interpreted as a brake on federal power, not states'.

Re: Re: Re: Re: unconstitutional

My reference stating otherwise is the Tenth Amendment, but the wording isn't clear. It contains two qualifiers, that the powers aren't prohibited to the states AND that they aren't delegated to the federal government (like copyright is). Both conditions must be met for the powers to be reserved to the states. Does "not reserved" mean that both the state and federal get to make laws? That's not how I read it, but I'm not a lawyer (or a judge).

Re:

"and EXACTLY the same thing happens in the opposite direction when terms are extended"'

Actually, No.

Actually Yes.

Your justification reminds me of the stupidity of a civil servant who once based an argument on the impossibility of negative numbers.

I just can't believe that anyone could seriously make that argument.

Wen I bought my LP's in about 1970 there was an exchange of consideration as you say - and part of the deal was that the exclusive rights would expire after a specified time. If someone changes the rules on me after the event then I have been robbed - simple as that.

Re:

While not on point since we are talking about different laws, try and imagine if you will purchasing your home from a seller who then transfers to you under the contract full and irrevocable title to the home. Now imagine a statute later being enacted that permits the seller to later reclaim title to your home without any obligation whatsoever to pay you a dime.

Your argument perfectly proves OUR point* - why you cannot see it is beyond me - I cannot believe you are THAT stupid so I can only imagine that your behaviour is deliberate. Are you trying to further discredit the RIAA ?

Re: Re: Re:

Is it really necessary to resort to ad hominem attacks to make your point?

That was not an ad hominem attack in fact it was quite the opposite.
An ad hominem attack would have said
"Your argument must be wrong because you are stupid."
What I said was "You must be stupid because your argument is so wrong.

That was an insult (for which I apologise - I don't normally resort to such things but I was at a loss to understand how you could possibly hold your position with a straight face.

I understand what the first contract comprises, namely, two parties where one buys something from the other for some predetermined amount. It is entirely a private activity between the two parties.

I do not understand the reference to a second contract. Are you suggesting that one who receives rights under copyright law has somehow entered into a legal and binding contract with the government and/or the general public?

Re:

I understand what the first contract comprises, namely, two parties where one buys something from the other for some predetermined amount. It is entirely a private activity between the two parties.
It is never purely a private activity. The state always determines what terms and conditions are allowable and which are enforceable. For example a contract to sell yourself into slavery would not be allowed - and gambling debts are not enforceable in many jurisdictions.
If contracts were purely private there would be no such thing as contract law!

I do not understand the reference to a second contract. Are you suggesting that one who receives rights under copyright law has somehow entered into a legal and binding contract with the government and/or the general public?

Copyright law provides a default contract and a set of limitations on the allowable contracts. It can be varied by a specific private contract. (For example an artist who paints your picture for a fee retains copyright on the picture by default - even though you get the physical object - but that condition can be altered by an explicit contract clause).

All laws that grant privileges to a specific group are effectively a contract between that group and society as a whole. So varying the laws is in effect a variation in a contract - and so morally questionable if done retrospectively (as has happened numerous times with term extensions

Re:

Are you suggesting that one who receives rights under copyright law has somehow entered into a legal and binding contract with the government and/or the general public?

That's effectively what copyright is, yes. It's a deal between the public and creators, where the creator gets exclusivity for a while, and in exchange the public gets free use of their products after that time. Extending the exclusivity later in exchange for nothing cheats the public.

think on this...

...let's say, just hypothetically, that I spend a great deal of money preparing a work based on a work that's scheduled to fall into the public domain on, I don't know, 1/1/1978. And let's say that, 10 years into my efforts and $20 million down, the copyright on that work is extended by 50 years or so. How is that not a taking, based on my totally justifiable reliance on the law as it stood when I began my efforts in furtherance of the useful arts?